Resource Development Trades Council of Newfoundland v. Labrador, 2018 NLSC 51

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Resource Development Trades Council of Newfoundland and Labrador v. Muskrat Falls Employers' Association Inc. , 2018 NLSC 51 Date : March 9, 2018 Docket : 201701G1223 Between: Resource Development Trades Council of Newfoundland and Labrador Applicant And: Muskrat Falls Employers' Association Inc. Respondent Before: Justice Valerie L. Marshall Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: October 13, 2017

Summary: The Applicant seeks judicial review of the Arbitrator’s decision, on the basis that the Arbitrator unreasonably deviated from the scope of the grievance. HELD: The application was dismissed, with costs. Appearances: Michael Gillingham Appearing on behalf of the Applicant

Christopher King Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Newfoundland and Labrador (Treasury Board) v. N.A.P.E., 2009 NLCA 15; Dunsmuir v. New Brunswick,2008 SCC 9; Parry Sound (District) Welfare Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42; Re I.A.M. v. Orenda EnginesLtd., [1958] O.L.A.A. No. 2, 8 L.A.C. 116; Pacifica Papers Inc. v. C.E.P., Local 76, (BC LA), [2000]B.C.C.A.A.A. No. 455, 94 L.A.C. (4th) 26; British Columbia Transit v. I.C.T.U., (BC LA), [1986] B.C.C.A.A.A. No.112, 27 L.A.C. (3d) 343. STATUTES CONSIDERED: Labour Relations Act, RSNL 1990 c. L-1.

TEXTS CONSIDERED: Donald J.M. Brown & David M. Beatty, Canadian Labour Arbitration, looseleaf, 4th ed. (Toronto: CanadaLaw Book, 2006) c. 2: 1300. REASONS FOR JUDGMENT Marshall, J.: INTRODUCTION [1] The Resource Development Trades Council of Newfoundland and Labrador (the “RDTC”) applied for judicial review of thedecision of Arbitrator Morgan Cooper (the “Arbitrator”) given December 20, 2016. The RDTC seeks an order of certiorari to quash thedecision, and asserts that the Arbitrator unreasonably deviated from the scope of the grievance.

BACKGROUND [2] The RDTC is a council of trade unions as defined by section 2(1)(

j) of the Labour Relations Act, RSNL 1990 c. L-1 (the“Act”). The RDTC is an umbrella organization for 16 building and construction trade unions. Pursuant to an Order-in-Council andRegulation 67/13 (the “Special Project Order”), the RDTC was designated to be the exclusive bargaining agent for all affiliated tradeunions who represent workers employed at the Muskrat Falls hydroelectric project in Labrador (the “Project”). [3] The Respondent, Muskrat Falls Employers’ Association Inc. (the “MFEA”), is an employers’ organization as defined undersection 2(1)(

o) of the Act. Pursuant to the Special Project Order, the MFEA was designated as the exclusive bargaining agent for allcontractors and sub-contractors operating on the Project. [4] The RDTC and the MFEA are parties to a Collective Agreement, dated May 30, 2012 to 2017. The Collective Agreementhas had numerous revisions. Revision 4 was the version in place at the time of filing of the grievance, which was the subject of thearbitration in this matter. [5] The grievance was filed in relation to Leonard Smith. In February of 2015 Mr. Smith began work with Speuata Security Inc.(“Speuata”).

Speuata is a member of the MFEA, and operates at the Project. When Mr. Smith was initially hired by Speuata, he washired in accordance with

Article 7 of the Collective Agreement, as he had a valid referral from the Hotel and Restaurant Workers Union,Local 779 (the “Union”). However, following a meeting of the Union Executive, held on July 6, 2015, Mr. Smith’s membership in theUnion was revoked. As a result of the revocation of his membership, Mr. Smith’s employment with Speuata was terminated about mid-July, 2015. However, he was subsequently re-hired by Speuata in September of 2015. [6] The grievance was filed by the RDTC, and was dated September 29, 2015.

The alleged violation of the CollectiveAgreement was described in the grievance, as follows: “Re–hiring of Mr. Leonard Smith who has no status within the union.” [7] The RDTC grieved the re-hiring on the basis that the re-hiring contravened the hiring and security clauses of the CollectiveAgreement due to Mr. Smith being re-hired without Union membership. [8] The arbitration hearing proceeded on April 28, 29 and August 9, 23 and 24, 2016. The Arbitrator’s decision was renderedDecember 20, 2016. He determined that the re-hiring of Mr. Smith did not violate the Collective Agreement, and the grievance was

dismissed. [ 9 ] At the hearing, and in his decision, the Arbitrator considered the circumstances surrounding the revocation of Mr. Smith’s Union membership. In this application, the RDTC submitted that the Arbitrator exceeded his jurisdiction by considering the revocation, instead of confining the issue to the re-hiring of Mr. Smith without a valid union referral. [ 10 ] At the arbitration hearing, the evidence of the circumstances leading to the revocation of Mr. Smith’s membership was provided by Mr. Patrick McCormick, who is the Financial Secretary, Business Manager and Chief Executive Officer of the Union.

He is also President of the RDTC, and the Newfoundland and Labrador Building Trades Council. [ 11 ] Mr. McCormick’s evidence was summarized in the Arbitrator’s decision. According to his evidence, on July 2, 2015, a special meeting of the Union’s Executive Board was called to exclusively deal with issues pertaining to Mr. Smith. The meeting was held to address concerns which had been raised regarding Mr. Smith’s attitude in the workplace. A concern was that Mr. Smith had not adjusted his attitude as a former police officer to the role of a security officer on a construction project.

The Union’s Constitution permitted Mr. Smith’s membership in the Union to be revoked at the will of the Executive Board of the Union; and the Executive ultimately determined that any action by Mr. Smith to jeopardize the employment of a general member would result in revocation of his membership in the Union. The Union Executive gave Mr. McCormick the authority to deal with any further issues with Mr. Smith. [ 12 ] On July 6, 2015, Mr. McCormick met with Lyndon Quinton, President of Speuata, in relation to a phone call Mr. McCormick had received from Cynthia Froude. Ms.

Froude was employed by Speuata, and she is Mr. McCormick’s daughter. Ms. Froude was apparently subject to a workplace investigation for a work-related incident. A statement from Mr. Smith formed part of the investigation into the incident. Mr. McCormick indicated to Mr. Quinton that Mr. Smith had given a detailed statement regarding the incident, however, Mr. Smith was not even there when the incident had occurred. [ 13 ] As a result of the investigation into the incident, Ms. Froude was demoted by Speuata, and she was given a suspension. That decision to discipline Ms.

Froude was subsequently overturned at a separate arbitration. [ 14 ] Shortly following the July 6th meeting between Mr. McCormick and Mr. Quinton, and after Mr. McCormick spoke with members of the Union’s Executive, the decision was made to revoke Mr. Smith’s membership in the Union. Mr. McCormick’s evidence was that the decision to revoke Mr. Smith’s membership was based not only on concerns expressed by Ms. Froude, but also due to concerns expressed by two of the Union’s shop stewards. [ 15 ] The Union’s lawyer was then instructed to draft a letter advising Mr. Quinton that Mr.

Smith’s membership in the Union had been revoked. The letter was received by Mr. Quinton on July 9, 2015. Within days, Mr. Quinton terminated Mr. Smith’s employment. According to the Arbitrator’s

summary of Mr. Quinton’s evidence, the termination was based on Mr. Quinton’s understanding of the Collective Agreement being that all workers on the Project were required to have a Union card to be on site. [ 16 ] Neither Speuata, nor the MFEA, filed a grievance respecting the revocation of Mr. Smith’s membership in the Union. Further, Mr. Smith did not file a complaint with the Labour Relations Board pursuant to

section 30 of the Act . [ 17 ] On July 28, 2015, the MFEA’s lawyer emailed Mr. Quinton, recommending that he inform the Union’s lawyer that Mr. Smith’s employment would be continued. Mr. Quinton’s evidence was that he did not take action due to the fact that he had already terminated Mr. Smith’s employment. Further, and as noted in the Arbitrator’s decision, the MFEA’s lawyer subsequently received communication from Mr. Smith’s lawyer, requesting assistance with re-instatement of Mr. Smith’s employment. [ 18 ] On September 18, 2015, Mr.

Quinton received correspondence from a manager for the Muskrat Falls Corporation, which was drafted by the MFEA’s lawyer, and which stated, as follows: 18-Sep-2015 Speuata Security Inc. P.O. Box 10 Mount Pearl, NL A1N 2C1 Attention: Mr. Lyndon Quinton Subject: Leonard Smith Dear Mr. Quinton: It has been brought to our attention that Speuta (sic) Securities (“Contractor”) discontinued the employment of Leonard Smith at the

direction of the legal counsel for the Hotel and Restaurant Workers (“Union”). We have further been made aware that Leonard Smith provided a statement in support of a Respectful Workplace Complaint, which complaint was founded by the Contractor and which resulted in discipline being assessed against another security officer being a Union member. Shortly after the assessment of this discipline the Union legal counsel notified the Contractor that the union membership of Leonard Smith had been revoked and that his employment should be discontinued.

Shortly after receiving this letter the Contractor requested advice from the Muskrat Falls Employers’ Association (“MFEA”) and were advised on July 28th that the worker’s employment should be continued and suggested a reply to the Union legal counsel’s letter, a copy of which is attached. On August 27th the MFEA received correspondence from legal counsel of Leonard Smith, a copy of which is attached threatening to make an application to the Labour Board against Speuata Security, Nalcor Energy, MFEA and the RDTC. You are hereby directed to reinstate the employment of Leonard Smith effective immediately.

If you have any questions, please contact the undersigned at your convenience. Yours truly, David Riffe Health, Safety, Security, and Emergency Response Manager Muskrat Falls Generation cc: Scott O’Brien Attachment [ 19 ] Mr. Smith was subsequently re-hired by Speuata in September of 2015. At the time Mr. Smith was re-hired he did not have a referral from the Union, as he was not a member. As stated, the RDTC filed the grievance on September 29, 2015. [ 20 ] At the arbitration hearing, the RDTC’s position was that Mr.

Smith was re-hired by the contractor, Speuata, in contravention of the terms of the Collective Agreement, because he was re-hired without a valid Union referral, and without referral from the Union’s out-of-work list; and he was not a member of the bargaining unit when re-hired. [ 21 ] The RDTC further took the position that the scope of the grievance did not invite consideration of the events leading to Mr. Smith’s termination of employment from Speuata in July of 2015, or the revocation of Mr.

Smith’s membership in the Union. [ 22 ] The MFEA took the position that the scope of the grievance was not limited to reviewing the re-hiring of Mr. Smith in September of 2015. Rather, the MFEA asserted that the Union had acted in bad faith when it revoked Mr. Smith’s Union membership in July of 2015; specifically, that his Union membership was revoked due to his statement regarding the investigation of Cynthia Froude.

Further, his reinstatement in September of 2015 was “inseparably linked to the circumstances giving rise to the revocation of his union membership by Local 779 in July of 2015” (page 40 of the Arbitrator’s decision). THE ARBITRATOR’S DECISION [ 23 ] As stated, the Arbitrator determined that he had the jurisdiction to review the circumstances surrounding the revocation of Mr. Smith’s Union membership, which occurred in July of 2015.

At pages 48 and 49 of his decision, the Arbitrator concluded, as follows: “… I am persuaded that I have jurisdiction to review the circumstances surrounding Local 779’s revocation of Mr. Smith’s union membership, for the limited purpose of determining whether the Speuata Security’s present employment of Mr. Smith, having regard to his loss of union membership, is consistent with the provisions of the Collective Agreement, and the general law.” [ 24 ] After reviewing the evidence, the Arbitrator concluded that the revocation of Mr. Smith’s membership in the Union was due to Mr.

Smith’s action of providing a statement adverse to the interest of Ms. Froude. [ 25 ] He then stated, at pages 51 and 52 of his Arbitration decision, as follows: I must now consider whether Local 779’s revocation of Mr. Smith’s union membership in July of 2015, on the basis of the statement he provided to Mr. Stanley, provides Speuata Security with a reasonable basis for concluding that Mr. Smith’s loss of membership is not

inconsistent with his present employment as a bargaining unit member under the Collective Agreement. In the absence of evidence that Mr. Smith’s statement was motivated by or otherwise provided in bad faith, I am not persuaded that Mr. Smith’s actions of providing a statement, in the context of a workplace investigation, was anything other than a faithful discharge of his duties and responsibilities as a Security Officer and member of the bargaining unit under this Collective Agreement. Moreover, it is my view that the revocation of Mr.

Smith’s union membership for the primary reason that he provided a statement adverse in interest to Ms. Froude, does not provide Speuata Security with a reasonable basis for concluding that his loss of union membership is inconsistent with his employment as a bargaining unit member under the Collective Agreement. I accept the Council’s submission that Mr. Smith had an option of submitting a complaint to the Labour Relations Board pursuant to

Section 30 of the Labour Relations Act . The provisions of

Section 30 provide the Board with broad powers to investigate complaints by employees who claim they have been unfairly denied admission or expelled from a trade union; including the power to order that the complainant be admitted to or reinstated in the union and further, that the complainant be reinstated in his or her employment. However, as previously stated, I am satisfied, on the principles in Orenda, Pacifica and British Columbia Transit , that I have jurisdiction to review the circumstances surrounding the revocation of Mr.

Smith’s union membership for the limited purpose of determining whether Speuata Security’s present employment of Mr. Smith, having regard to his loss of union membership, is consistent with the provisions of the Collective Agreement, and the general law. To that extent, I share the view of arbitrator Whelan in MFEA an (sic) RDTC (Grievance 128) that the Labour Relations Board does not exercise an exclusive jurisdiction over disputes of this nature. It is my view, after careful consideration of the totality of the evidence, with particular regard to the reasons for which Mr.

Smith’s union membership was revoked, and the relevant provisions of the Collective Agreement, that Speuata Security does not, in the exercise of its management rights, have just cause to terminate Mr. Smith’s employment.

Although I am mindful that arbitrator Whelan recently upheld the termination of an employee whose membership was revoked by Local 779, I submit that the facts of this case are clearly distinguishable from the facts before arbitrator Whelan in MFEA and RDTC (Grievance 128) , where he concluded that the employee whose union membership was revoked had engaged in unacceptable behavior that created a toxic work environment and violated the rights and responsibilities incumbent on all the individuals and entities involved, to maintain a respectful workplace. [ 26 ] The Arbitrator’s conclusion is at pages 53 and 54 of his decision, as follows: On the basis of the evidence and by the foregoing considerations, I am persuaded that Local 779’s revocation of Mr.

Smith’s union membership was on the basis of his provision of a statement in the context of a workplace investigation, which fell within the faithful discharge of his duties and responsibilities as a Security Officer. In my view, any action by Speuata Security to terminate his employment by reason of Local 779’s revocation of union membership on July 7, 2015, is inconsistent with its Collective Agreement obligations, more particularly, its obligation to have just cause to terminate the employment of a bargaining unit member.

To the extent that there is an inconsistency between the application of the union security provisions (Article 6) or hiring provisions (Article 7) of the Collective Agreement, arising from Local 779’s revocation of Mr. Smith’s union membership, and the Collective Agreement requirement of just cause for discharge from employment (Article 5.02(

c) and 15.03), it is my view (on the principles in Orenda, Pacifica and British Columbia Transit ) that the latter requirement must govern. I find that the re-hiring of Mr. Smith did not violate the collective agreement and accordingly, the grievance is dismissed. Respectfully submitted as the decision of the arbitrator, this 20th day of December, 2016.

Morgan Cooper Sole Arbitrator PROVISIONS OF THE COLLECTIVE AGREEMENT [ 27 ] The relevant provisions of the Collective Agreement, as referenced at pages 4 to 7 of the Arbitrator’s decision, are as follows: The relevant Articles of the Collective Agreement are as follows: 4.02 The Council of Unions hereby recognizes the Association as the sole and exclusive bargaining agent for all Contractors engaged in the construction of the Lower Churchill Project at the Site.

All Contractors engaged in the construction of the Lower Churchill Project at the Site and having employees working within the scope of this Agreement shall be required, as a condition of contract award, to become members of the Association and to observe the terms and conditions of this Agreement. 4.05 It is understood and agreed by the parties hereto that no bargaining relationship is created or will be created at any time during the term of this Agreement or any extension of the terms of this Agreement between the Owner, or the Owner’s Engineering Procurement Construction Management (“EPCM”), or their subsidiaries and affiliates and their successors (unless such subsidiaries, affiliates or

successors of the EPCM directly hire members of the Council of Unions to work on the Site in which case this Agreement shall apply) and a local union, the Council of Unions, or any affiliate of the Council of Unions, by voluntary recognition or by action of law pursuant to the Labour Relations Act of the Province of Newfoundland and Labrador or by any other means. Accordingly this Agreement does not apply to the Owner or EPCM, their subsidiaries, affiliates and their successors or the employees of any of the aforementioned.

Accordingly, an arbitrator shall have no authority or jurisdiction to make any order or award any remedy against the Owner of the EPCM, their successors, affiliate and their successors or to any employees of the aforementioned, save and except where those employees have been hired directly by the EPCM as is provided for above. 5.01 The Contractors retain full and exclusive authority of the management of their business and to exercise such rights, subject to the provisions of this Agreement.

In addition to the rights of the Contractors set forth in this Agreement, the Contractors shall retain all rights of management. 5.02 Without restricting the generality of the foregoing, it is agreed that is the exclusive function of the Contractors:

c) to hire, transfer, select, assign work, monitor and manage productivity, promote, demote, lay off, discipline and discharge employees for just cause and to increase or decrease the work force from time to time; 6.01 The Contractor shall not discriminate against any employee by reason of membership in a Union:

a) Every worker who is a member or becomes a member of a Union shall maintain his/her membership in a Union as a condition of employment;

b) Every new worker, including, but not limited to, Labrador Innu, residents of Labrador, residents of the Province and TFWs, shall be given the option to make application to become a member in a Union; however, they are required to pay union dues and assessments as a condition of employment;

c) The deductions for union dues, field dues, initiation fees, permit fees and/or all other assessments shall be authorized by any worker covered by this Agreement. Any worker who refuses or neglects to sign the appropriate forms or who revokes the authorization or who resigns membership in the Union will be deemed to have forfeited his/her right for employment on the Project and will be deemed to have voluntarily resigned; and

d) A person shall be deemed to be in good standing with the Union for the purposes of compliance with

Article 6.01(

c) above if he/she has paid the one time permit fee. The person shall authorize deduction of union dues and assessments notwithstanding the fact that that person has not joined the Union. 6.02 The Contractor agrees to deduct monthly union dues from all employees covered by the Agreement as a condition of employment. Union dues as defined herein shall include field dues or permit fees if applicable.

When remitting union dues, the Contractor shall provide the names, SIN and classification of the employees from whose pay such deductions shall be made. 6.03 The Contractor further agrees to deduct from all employees such union dues, assessments and/or initiation fees as evidenced by a signed union authorization from employees and to forward such monies to the appropriate Unions as provided for in

Article 6.04. 6.06 Qualified Newfoundlanders and Labradorians or other qualified persons have the option to make application for membership to the appropriate Union that such person has the necessary qualifications to join. Access to Union membership for such non-union members will be enabled through the outgoing and expeditious review of membership, which shall occur at least monthly. 7.07 The Parties agree to adhere to the following hire procedure:

b) All workers name hired, selected or referred shall be from the appropriate Union’s out-of-work list; for those Innu referenced in

Article 7.02 there is no requirement for them to be on the out-of-work list;

e) i) All hiring will be done through the Union office, and no one will be employed unless they are in possession of a referral slip from the Union office, which must be presented and approved by a Council of Unions Site Representative and/or Ship (sic) Steward prior

to commencing work unless provided otherwise in this Agreement ii) In the event that a prospective worker is given a dispatch slip and has completed the reasonable requirements for hire, they shall report to work as soon as practicable.

In the event the Contractor is not ready to engage the prospective worker within fourteen (14) days of the dispatch, the worker may return the dispatch slip and become available to other Contractors. 7.10 The Council of Unions recognizes the Contractor’s right to evaluate all persons to determine their level of competency, qualifications and physical and medical fitness to perform the required work. 7.13 In the event that an employee is terminated or suspended for cause, such employee will not be name hired, selected or referred to the Site, except by agreement of the Parties or in the event the termination is set aside and a lesser penalty is imposed or the suspension has been served.

After any suspension imposed or upheld is served, such employee may be name hired, selected or referred to the Site. 15.01 A dispute arising out of the

interpretation, application or alleged violation of this Agreement, including a dispute at whether a matter is arbitrable, but excluding disputes under

Article 17 (Pre-job Conference) or

Article 18 (Work Team Composition), which shall not be subject to the herein grievance procedure, shall be adjudicated in accordance with the following procedures: a) …. b) …. c) …. d) …. 15.02 No employee shall be disciplined or discharged except for just cause.

Any dispute arising out of the discipline or discharge of an employee shall commence at Step 3 and may be referred to arbitration in the same manner as an employee’s grievance. …. 15.06 The arbitrator shall not have any power to alter, enlarge, change, add to or detract from the Agreement or to substitute any new provision for any existing provision nor to give any decision inconsistent with the terms and provisions of this Agreement. An arbitrator shall not dismiss any grievance on a technicality or error on the grievance form provided the grieving party has provided the particulars set out in

Article 15.01(b). ISSUES [ 28 ] The two issues to be determined are: 1. What standard of review applies to the decision of the Arbitrator? 2. Should the request for certiorari be granted? ANALYSIS Issue No. 1 – What standard of review applies to the decision of the Arbitrator? [ 29 ] It is settled law in this Province that the standard of reasonableness is to be applied to a judicial review of a labour arbitration decision in which the scope of a grievance is considered; Newfoundland and Labrador (Treasury Board) v.

N.A.P.E. , 2009 NLCA 15 , at paragraph 5 . [ 30 ] The Supreme Court of Canada decision in Dunsmuir v. New Brunswick , 2008 SCC 9 described the standard of reasonableness, at paragraph 47 as follows: 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned

mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [31] Both parties agreed that the Dunsmuir standard of reasonableness was to be applied in this case. Issue No. 2 – Should the request for certiorari be granted? [32] In order to determine if the remedy of certiorari is appropriate, I must determine if the decision of the Arbitrator meets thestandard of reasonableness.

If the Arbitrator’s decision does not meet the standard of reasonableness, then certiorari may be granted. [33] The RDTC submitted that the Arbitrator’s decision is not reasonable because his reasons are neither intelligible, nor justified,on the basis of the facts and law. [34] The RDTC’s position is that the Arbitrator exceeded the scope of the grievance by considering the circumstances surroundingthe revocation of Mr. Smith’s Union membership, instead of limiting his consideration to the fact of Speuata’s re-hiring of Mr. Smith inthe absence of Mr.

Smith having any status with the Union. [35] In support of its position, the RDTC referred to cases, as well as the following excerpt from the labour law text authored byDonald J.M. Brown & David M. Beatty, Canadian Labour Arbitration, looseleaf, 4th ed., (Toronto: Canada Law Book, 2006) c. 2:1300, as follows: Just as the collective agreement defines the general scope of the arbitrator’s jurisdiction, so the submission to arbitration defines hisjurisdiction in the particular case.

As was stated by one arbitrator: This board is mindful of the fact that, unlike the Courts, it possesses no inherent jurisdiction and its jurisdiction and authority in theabsence of the mutual agreement of the parties, is that conferred upon it by the collective agreement and the grievance or submission toit. The submission may consist of the written grievance or it may be an independent document.

But regardless of the form, once thesubmission is made, the arbitrator cannot of his own volition extend, amplify or add to the issues, or substitute other issues for or in lieuof the issues defined by the submission to arbitration. However, if there is agreement to do so or if there is conduct amounting toacquiescence in the modification of the submission, then the arbitration board may thereby acquire jurisdiction. Necessarily, the arbitrator will be required to construe the submission to arbitration or grievance in the context of the collectiveagreement to determine its scope.

For example, one arbitrator has held that a representation rights issue could not be separated from themerits of a dispute, so that the subsequent amendment of a grievance to deal with this issue was permissible. In this regard, a distinctionmust be made between a grievance which is merely lacking in particularity and one which fails to define or include a matter and therebyput it in issue in the dispute. If the written grievance is merely too vague, that will not affect the arbitrator’s jurisdiction and it may becured by giving particulars, or by granting an adjournment.

For example, an award will be quashed if an arbitrator orders the dischargeof an employee for failure to pay dues as required by the union security provision, where the submission to arbitration does not expresslyconfer upon him the authority to do so. [Emphasis added by the Applicant]. [36] In reference to the foregoing excerpt, the RDTC submitted that an agreement by the parties is required before the issues in anarbitration are amplified, or substituted.

Further, the RDTC submitted that an arbitrator may deal with the “true question” when agrievance lacks particularity; but not when a grievance fails to put a substantive issue in dispute. [37] Further on this point, the RDTC referred to Parry Sound (District) Welfare Administration Board v.

O.P.S.E.U., Local 324,2003 SCC 42, where the Supreme Court of Canada stated, at paragraph 68, as follows: “… it is important to acknowledge the general consensus among arbitrators that, to the greatest extent possible, a grievance should not bewon or lost on the technicality of form, but on its merits...” [38] The RDTC did acknowledge that a liberal construction of a grievance is necessary in order to allow the “real complaint” to bedealt with.

This was stated in the Supreme Court of Canada decision in the Parry Sound decision, also at paragraph 68, as follows: 68 As a general rule, of course, it is important that the parties to a collective agreement comply with the procedural requirements setout therein. If a union intends to plead that the employer has breached the employee's statutory rights, it should, as a matter of generalpractice, specify the statutory provision that the employer is alleged to have breached.

That said, it is important to acknowledge thegeneral consensus among arbitrators that, to the greatest extent possible, a grievance should not be won or lost on the technicality ofform, but on its merits. In Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local2486 (1975), (ON CA), 8 O.R. (2d) 103 (C.A.), at p. 108, for example, Brooke J.A. wrote as follows: Certainly, the board is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt

with and the appropriate remedy provided to give effect to the agreement provisions and this whether by way of declaration of rights orduties, in order to provide benefits or performance of obligations or a monetary award required to restore one to the proper position hewould have been in had the agreement been performed. [39] Further, in Newfoundland and Labrador (Treasury Board) v.

N.A.P.E., the Newfoundland Court of Appeal stated, as follows, atparagraph 9: 9 Based on the foregoing authorities, it is clear that the arbitrator had jurisdiction to define the scope of the grievance, that he was to"liberally construe [the grievance] so that the real complaint is dealt with" and that his decision as to the scope of the grievance is to bedeferred to save where that decision is "unreasonable". [40] The RDTC submitted that the issue of the re-hiring of Mr. Smith without a Union referral is substantially different from theissue of his expulsion from the Union.

While a liberal construction of a grievance is permitted, arbitrators are not permitted to expandthe scope of the grievance by substituting issues, or putting other substantial matters in dispute. Therefore, on this basis, the RDTCsubmitted that the Arbitrator’s reframing of the issue was unreasonable.

I respectfully disagree. [41] In my view, based on a liberal construction of the grievance, the Arbitrator reasonably justified his reframing the issue whenhe referred to the “real question” which arises from the grievance as follows, at page 45 of his decision: I accept that the arbitrator’s jurisdiction arises from the Collective Agreement and the submission to arbitration, as reflected in thestatement of grievance. I also concur with the principle that once the grievance is submitted, it is not open to a party to alter or enlargethe substance of the grievance.

In this case, the alleged violation of the Collective Agreement as expressly stated in the grievance form isthe “Re-hiring of Mr. Leonard Smith who has no status with the Union”. Apart from the fact that the word “re-hiring” is in itself anacknowledgement of Mr. Smith previous employment with the employer, it is my view that the re-hiring of Mr. Smith arises out of and isinextricably linked to the circumstances that gave rise to the termination of his employment in July of 2015. I am satisfied that the realquestion which arises from the submission to arbitration is whether Mr.

Smith is entitled to continue in his employment as a bargainingunit member on the Muskrat Falls site, having regard to the revocation of his union membership by Local 779 in July of 2015. [42] It is also my view that the foregoing excerpt justifies the Arbitrator’s finding that he had the jurisdiction to consider thecircumstances of Mr. Smith’s revocation of Union membership. As stated above, “the re-hiring of Mr.

Smith arises out of and isinextricably linked to the circumstances that gave rise to the termination of his employment”. [43] The Arbitrator further justified his jurisdiction by referring to the seminal arbitration decision of Re I.A.M. v. Orenda EnginesLtd., [1958] O.L.A.A. No. 2, 8 L.A.C. 116. The Arbitrator noted that in the Orenda decision, there was a discussion of the relationshipbetween union security and hiring provisions of the collective agreement, and the union’s constitution and by-laws.

At pages 46 and 47of his decision, Arbitrator Cooper emphasized the following excerpts from Orenda: 22. … the union cannot insist on enforcement of its constitution and by-laws in derogation of the obligations which it has assumed,and which are binding upon employees, under the terms of the collective agreement. It is unthinkable and untenable for the union toassert that it may enforce suspension or expulsion against a member who remains faithful to the collective agreement.

If a dilemma isposed for the union as between its constitution and by-laws on the one hand, and the collective agreement on the other, the latter mustgovern if it should be impossible to reconcile them. 23. … The requirement of particularity is not for the benefit of the company but to protect the job security of the individual employee,a value which is among the highest of those which collective bargaining was designed to secure. [44] Arbitrator Cooper further referred to the arbitration decision of Pacifica Papers Inc. v. C.E.P., Local 76, (BC LA), [2000] B.C.C.A.A.A.

No. 455, 94 L.A.C. (4th) 26, as well as the arbitration decision British Columbia Transit v. I.C.T.U., (BC LA), [1986] B.C.C.A.A.A. No. 112, 27 L.A.C. (3d) 343. [45] From Pacifica, Arbitrator Cooper emphasized the following (at pages 47 and 48 of his decision): 20. …The employer is entitled to inquire as to the reason for the employee no longer being a member in good standing of the union,and to have disclosed to it the union rule, order, decision, bylaw or constitutional provision by which that state of affairs came about.

Thepurpose is to allow the employer a reasonable basis for concluding that the union rule, order, decision, bylaw or constitutional provisionis neither inconsistent with the collective agreement nor with the general law… [46] From the British Columbia Transit arbitration decision, Arbitrator Cooper quoted the following (at page 48 of his decision): 22 Although there was disagreement between the parties as to the exact nature of my jurisdiction, it was agreed that an arbitrator hasat least limited powers to review the circumstances in which a member is suspended from union membership where the suspensionaffects the employee's ability to continue in the employment contract.

The rationale for this view is obvious. Pursuant to both theprovisions of the collective agreement and the Labour Code an employer is entitled to dismiss an employee from employment only forproper cause. An employer who terminates an employee for other than proper cause is liable to damages.

In those circumstances,therefore, the employer is obligated to inquire into the circumstances of the loss of union membership in order to ascertain that inexercising the obligations imposed upon it by reason of the security clauses of the collective agreement it does not open itself to anindependent action for wrongful dismissal.

[ 47 ] Finally, Arbitrator Cooper concluded at pages 48 and 49 of his decision, as follows: I have carefully reviewed the authorities submitted by the parties, particularly as they relate to circumstances where an employer is called upon to effect a discharge of an employee for reason that they are no longer a member in good standing of the union. I concur with the view of arbitrator Munro in Pacifica that the Orenda decision has been considered by many arbitrators over the years, and must be regards as having general acceptance.

I also find the view of arbitrator McColl in British Columbia Transit to be instructive. On the principles set out in Orenda, Pacifica and British Columbia Transit , I am persuaded that I have jurisdiction to review the circumstances surrounding Local 779’s revocation of Mr. Smith’s union membership, for the limited purpose of determining whether Speuata Security’s present employment of Mr.

Smith, having regard to his loss of union membership, is consistent with the provisions of the Collective Agreement, and the general law. [ 48 ] After concluding he had jurisdiction to do so, Arbitrator Cooper then proceeds to consider the evidence surrounding the circumstances of Mr. Smith’s revocation of Union membership. [ 49 ] With respect to the three arbitration authorities referred to by Arbitrator Cooper, the RDTC submitted that those authorities are distinguishable.

Specifically, the RDTC submitted that in those decisions, the unions filed grievances following an employer’s refusal to terminate upon an employee having been expelled from a union. Those grievances therefore sought a decision that the employer was compelled to terminate. By contrast, in this matter, Speuata had already terminated Mr. Smith. [ 50 ] I accept the RDTC’s submission that the above referenced arbitration authorities are indeed factually distinct in the manner as described by the RDTC. However, in my view, the factual distinctions are not significant.

Rather, I find that the Arbitrator reasonably relied on those authorities to support his finding that he had jurisdiction to consider and review the circumstances surrounding Mr. Smith’s revocation of union membership; particularly due to the fact that the revocation of union membership affected the decision to terminate Mr. Smith’s employment. [ 51 ] The RDTC also submitted that an arbitrator cannot scrutinize documents ancillary to a collective agreement, unless such documents were incorporated by reference in the collective agreement.

The RDTC submitted that in Orenda , the arbitration board dealt with that issue by indicating the union’s security clause projected the union constitution and by-laws into the agreement; thus allowing the arbitrator to determine if the expulsion of the member in that case had been reasonable. [ 52 ] The RDTC submitted that it was not reasonable to suggest that the 16 or more ancillary documents (of the unions who are party to the Collective Agreement) were all projected into the Special Project collective agreement.

The Arbitrator was aware of this position, as he refers to it at page 38 of his decision. [ 53 ] Further on this point, the RDTC submitted that at the arbitration hearing, the RDTC had put forward other authorities distinguishing Orenda on the basis that it is not always the case that the parties intended to project the constitution and by-laws into the collective agreement.

The RDTC submitted that the Arbitrator did not address these authorities, and he did not explain how the parties intended to project the constitution and by-laws into the Collective Agreement. [ 54 ] With respect to this latter submission, it is not necessary for the Arbitrator to expressly deal with each and every position and authority put to him in an arbitration hearing. He did cite the authorities that had been put to him by both parties. He clearly chose to follow the principles from the Orenda decision, instead of the opposing authorities.

It was not unreasonable for him to have chosen a line of authority which he considered as supporting his decision. In my view, in doing so he was putting forward a possible acceptable outcome which was “defensible in respect of the facts and law” ( Dunsmuir , at paragraph 47 ). [ 55 ] I add that due to the Arbitrator’s finding that the re-hiring arose out of, and was inextricably linked to the circumstances that gave rise to the termination of Mr. Smith’s employment, it was not necessary for him to grapple with the issue of projection. Rather, the Arbitrator determined that the “real question” was whether Mr.

Smith was entitled to continue in his employment, having regard to his loss of union membership, or whether such continued employment was inconsistent with the provisions of the Collective Agreement (page 49 of the Arbitrator’s decision). Such, in turn, required a determination as to whether the dismissal was for just cause. [ 56 ] The just cause analysis was undertaken in accordance with the Collective Agreement (Articles 5.02(

c) and 15.03). The circumstances of revocation form part and parcel of the just cause analysis in this case. Therefore, it was not necessary for the Arbitrator to engage in a projection analysis before deciding if he could consider the circumstances of revocation. [ 57 ] Further on this point, I add that as suggested by the MFEA’s submissions, I agree that

Article 6.01 of the Collective Agreement implicitly suggests that the employer can look into circumstances under which an employee has lost union membership. That clause in the Collective Agreement allows for termination of employment in the event union membership is not maintained by a worker. I also agree with the MFEA’s submission that an employee cannot be fired under

Article 6.01 if his union membership has been revoked for reasons constituting bad faith. [ 58 ] The RDTC further submitted that the decision of the Arbitrator is unreasonable because it fails to attribute meaning or weight to the security

article (clause 6) and the hiring

article (clause 7) of the Collective Agreement. I disagree with this submission. The Arbitrator squarely dealt with any inconsistencies between those articles, and the articles of the Collective Agreement requiring just cause for discharge from employment. To recap, at page 54 of the Arbitrator’s decision, he stated, as follows: …To the extent that there is an inconsistency between the application of the union security provisions (Article 6) or hiring provisions (Article 7) of the Collective Agreement, arising from Local 779’s revocation of Mr. Smith’s union membership, and the Collective Agreement requirement of just cause for discharge from employment (Article 5.02(

c) and 15.03), it is my view (on the principles in Orenda, Pacifica and British Columbia Transit ) that the latter requirement must govern. [ 59 ] In the foregoing excerpt from his decision, the Arbitrator clearly acknowledges there is a potential conflict between Articles 6 and 7 and the requirement of just cause for discharge as contained in Articles 15.02 and 5.02(

c) of the Collective Agreement. The conflict arises in this case because the Union does not want Mr. Smith back in the Union, despite there being a finding of dismissal

without cause. As a result, he was re-hired on the site, without being a member of the Union. The Arbitrator reasonably finds that the requirement for just cause for discharge must in the circumstances govern.

Again, I am satisfied that this is an acceptable outcome, which is “defensible in respect of the facts and law” ( Dunsmuir , at paragraph 47 ). [ 60 ] Finally, the RDTC submitted that the decision is unreasonable as it condones a “self-help remedy” imposed by Speuata, instead of requiring the parties to adhere to the Collective Agreement. [ 61 ] To elaborate, the RDTC noted that neither Speuata nor the MFEA filed a grievance in relation to Mr. Smith’s revocation of membership in the Union. Further, Mr. Smith did not bring his own application to the Labour Relations Board under

section 30 of the Act . Further, the employer had initially agreed that the employment must end due to the revocation of Union membership. As noted by the Union, the employer’s position changed only after Mr. Smith’s legal counsel became involved, and the Muskrat Falls Corporation directed the re-hiring of Mr. Smith. [ 62 ] The RDTC further submitted that the decision sanctions the re-hiring of Mr. Smith, despite other avenues having been available to Mr. Smith, the employer and the MFEA.

As a result, the MFEA was permitted by the Arbitrator to raise an issue at the arbitration, despite the expiration of the time period for the MFEA to have filed a grievance with respect to that issue. [ 63 ] Again, this submission was put before the Arbitrator at the hearing by the RDTC, and is referenced at page 38 of the Arbitrator’s decision. At pages 52 and 53 of his decision, the Arbitrator squarely addressed the issue of the failure of Mr. Smith to submit a

section 30 complaint to the Labour Relations Board. The Arbitrator ultimately reasonably concluded that the Labour Relations Board did not have exclusive jurisdiction over the nature of the dispute before him. [ 64 ] Further, at page 51 of his decision, the Arbitrator dealt with the MFEA’s action leading up to the reinstatement of Mr. Smith. He stated, as follows: I note that there was substantial evidence provided with regard to correspondence from Mr. Riffe dated September 18th, under the letterhead of Muskrat Falls Corporation, directing Speuata Security to rehire Mr. Smith.

While these circumstances strike me as extraordinary, my role in the context of the grievance before me is to determine whether Speuata Security, and by extension, the MFEA (listed as a party under

Article 2.01), have violated the Collective Agreement. I note that Speuata Security is required by

Article 4.02 to observe the terms and conditions of the Collective Agreement, and is bound by that obligation, whether or not it follows the advice of the MFEA or a direction from the Muskrat Falls Corporation. [ 65 ] Based on the foregoing, it is clear that the Arbitrator considered his role to be to determine whether Speuata (and, in turn, the MFEA) had violated the Collective Agreement. Although this matter could indeed have been dealt with through other avenues, such as a

section 30 complaint before the Labour Relations Board, or the filing of a grievance by the MFEA, that did not preclude the Arbitrator from considering the circumstances surrounding the revocation of union membership and termination of employment, when such was “inextricably linked” to the re-hiring of Mr. Smith.

I therefore reject the RDTC’s submission that the Arbitrator’s decision condones a self-help remedy. [ 66 ] Based on the foregoing analysis, and after considering the authorities and all the submissions of both Counsel, I conclude that in accordance with Dunsmuir , the Arbitrator reasonably justified his decision to consider the circumstances of revocation of Mr. Smith’s membership.

His reasons for doing so are intelligible and transparent; his decision falls under the range of possible outcomes, defensible in accordance with the facts and law. [ 67 ] The Arbitrator thoroughly reviewed the evidence, and then reasonably concluded, based on the evidence that Mr. Smith’s union membership was revoked for the primary reason of his statement regarding the workplace investigation of an incident allegedly involving Ms. Froude. [ 68 ] Based on the evidence, the Arbitrator also concluded that “Mr.

Smith’s action of providing the statement was nothing other than a faithful discharge of his duties and responsibilities as a security officer and member of the bargaining unit under this Collective Agreement” (page 52 of the decision). [ 69 ] As a result, and based on the evidence and law before him, the Arbitrator therefore reasonably concluded that Speuata did not have just cause to terminate Mr. Smith’s employment. Further, he reasonably concluded that the just cause provision of the Collective Agreement must take precedence over the Union security and hiring provisions of the Collective Agreement.

The grievance was therefore dismissed. [ 70 ] Finally, and again based on the foregoing analysis, and after considering the authorities and submissions of both Counsel, I conclude that in accordance with Dunsmuir , the Arbitrator’s decision-making process was justified, transparent and intelligible. Further, I find that the Arbitrator’s decision falls within the range of possible acceptable outcomes which are defensible in accordance with the facts and law ( Dunsmuir , paragraph 47 ). [ 71 ] The Arbitrator’s decision meets the standard of reasonableness.

The RDTC’s application is dismissed, with costs on a Column 3 basis awarded to the MFEA. ____________________________ Valerie L. Marshall Justice